The changes to the 2011 law have brought a more conservative definition to several different aspects of the workers’ compensation law which ultimately may make it more difficult for an injured employee to recover. The broad changes are outlined below and will be discussed.

(1) The Definition of the Injury

The new definition of injury as set forth in Tenn. Code Ann. § 50-6-102(12) defines the terms of personal injury to arise out of employment as follows:

(a) The injury is “accidental” being caused by an event that is identifiable by time and place occurrence although it can be more than one incident;

Someone, somewhere will take the position that the event will have to be identified to the hour and minute. But, look at wording “set of incidents” which still leaves the door open to gradual injuries. i.e. unloaded from 9:00 a.m. – 10:00 a.m. 25 pound boxes from delivery truck 10-28-11. Does this broaden the rule of recovery for mental injuries which under <span style=”text-decoration: underline;”>Jose</span> v. <span style=”text-decoration: underline;”>Equifax</span>, 556 SW 2d 82 (1977), could not be gradual? i.e. set or series of incidents. A plaintiff would want to argue that it does broaden recovery for mental injuries.

(2) Causation Presumed Correct Standard

(b) The authorized treating physician’s opinion as to causation is presumed correct unless rebutted by a preponderance of the evidence. T.C.A. §50-6-102(12)(A)

Certainly, this is a huge contrast from the prior law which had cases stating all sorts of different propositions. Essentially, if the appellant court wanted to rule in favor of the party with a favorable IME it would quote case law saying that the opinions of a treating physician need not necessarily be accepted. If the appellant court wished to rule in favor of the treating physician’s opinion, there were some opinions that the treating physician’s opinion should be favored. Usually there would be some statement as to why this was true in a particular case. The underpinning of this line of opinions was usually the numbers of visits and treatment rendered over a lengthy period of time rather than a single visit to an independent medical evaluation. All of this appears to be changed as to causation.

Note the earlier MIR change about the presumption as to the impairment rating. This makes the MIR physician presumed correct as to the impairment rating absent clear and convincing evidence.

The new environment may more difficult in terms of causation because the treating physician is presumed correct. This undercuts the IME process. However, if one looks at the language which follows in the rest of the statute, the presumption can be rebutted by a “preponderance of the evidence”. This eliminates that problem. Thus, another view of the change is that not much has really changed. The preponderance of the evidence test has always been law. If the treating physician’s opinion on causation is presumed correct but then can be overcome by a preponderance of the evidence so what! This means that the plaintiff has the burden of proof. This is old news. The plaintiff has always had the burden of proof.

Some will argue that this statute seems to force the trial court to pick a side. The judges may no longer be able to blend ratings or come up with a middle ground. The presumption and necessity to overcome the treating physician probably means that the judges will have to make specific findings as to which rating they believe is appropriate. However, the judges are not bound by the medical testimony and may arrive at their own findings taking judicial notice of the AMA Guide provisions. This may lead to significantly more appeals based upon the weight of the evidence. The issue has several moving parts which include (a) a liberal construction of the statutes in favor of the injured worker, (b) with a presumption of correctness for the authorized treating physician, (c) the trial court’s discretion on credibility of witnesses, (d) and using a preponderance of the evidence test all of which will likely be litigated heavily over the next decade.

How this will play out will be determined by appellant decisions defining what these terms mean. I see that there is room for argument in several directions. (a) that the presumption creates some higher burden of proof than otherwise existed, (b) nothing has changed because the presumption can be rebutted by a preponderance of the evidence which was the old burden of proof which plaintiffs have always had, and (c) you cannot average impairments (unless the preponderance of the evidence test indicates you should) and the judge makes an independent finding as to impairment, in which case you can. Are you confused yet? This will be litigated.

The Thomas Law Firm is located in Murfreesboro, TN and serves clients in and around Fosterville, Smyrna, Lascassas and Rutherford County.

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